Automatic unfair dismissal or a detriment
There are two main types of claims that can be brought by whistleblowing employees in the Employment Tribunals: (1) a claim that you have been subjected to a detriment (poor treatment) as a result of making a protected disclosure pursuant to section 47B of the Employment Rights Act (‘47B’); and (2) automatic unfair dismissal as a result of making a protected disclosure pursuant to section 103A ERA (‘103A’). Some examples of detriment include being subjected to performance management, being demoted and/or bullying and harassment. Being treated worse because you have spoken up.
The distinction between the claims is that a dismissal cannot be pursued against an employer as a detriment claim. This is of practical significance because unlike a 103A claim where the employee has to show that the only or principal reason for the dismissal was the whistleblowing by the employee, 47B claims only require the employee to show that the detriment was on the ground that, or materially influenced by the whistleblowing, not that it was the only or main reason.
Showing that a protected disclosure was not the only reason for causing the subsequent detriment is an easier claim to prove. In the Court of Appeal decision in Ling Kong v Gulf International Bank (UK) Limited where I represented the Claimant, the court held that it was Ms Kong’s conduct rather than the protected disclosure itself that led to her dismissal, whereas her claims for detriment did have merit however they had been been filed out of time (prior to my acting). The time limit is three months less one day from the date of the act of each detriment.
Recently the Employment Appeal Tribunal (EAT) considered the distinction between these two claims in the case of Wicked Vision Ltd v Mr I Rice. The Claimant was employed as Head of UK Sales. He was dismissed allegedly by reason of redundancy. The Claimant believed that he had been dismissed for making protected disclosures regarding alleged breaches by the employer of the Coronavirus Job Retention Scheme where employees were allegedly being forced to work while on furlough.
He argued that his dismissal was a detriment pursuant to 47B and that the employer was vicariously liable. The tribunal agreed. The Respondent appealed and said that the tribunal had made an error of law. The EAT allowed the appeal holding that 47B claims do not include detriments that amount to dismissal, because that is why there is a separate claim under 103A available to claimants, i.e. a dismissal cannot be a detriment. The EAT confirmed that a detriment claim could only be pursued against the individual who had made the decision to dismiss.
The law of whistleblowing is complex. We recommend you obtain legal advice before embarking on these claims. It can be difficult to know how you should make your application to the tribunal and what claims you can and should bring. In this case, the Claimant did not present his claims properly meaning he cannot now pursue an automatic unfair dismissal claim against his employer.
This blog is written by Anita Vadgama, Partner at didlaw.
